Director of Public Prosecutions v Parsons (a pseudonym)
[2021] VCC 635
•20 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHARLIE PARSONS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 May 2021 | |
DATE OF SENTENCE: | 20 May 2021 | |
CASE MAY BE CITED AS: | DPP v Parsons (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 635 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Pleas of guilty – Recklessly cause serious injury – Conduct endangering persons – Offender repeatedly punched victim and strangled her – Victim suffered serious injury to eye – Frenzied attack in context of domestic violence – No prior criminal history – Remorse – Strong prospects of rehabilitation.
Legislation Cited: Crimes Act 1958 ss 17, 23; Family Violence Protection Act2008 s 123(2); Sentencing Act 1991 ss 6AAA, 18, 44.
Sentence: Imprisonment for a period of 2 years and 6 months with a non-parole period of 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Malik (Plea) | Office of Public Prosecutions |
| Ms V Worrell (Sentence) | ||
| For the Accused | Mr C Terry | James Dowsley & Associates |
HIS HONOUR:
Introduction
1Charlie Parsons[1], you have pleaded guilty to one charge of recklessly cause serious injury contrary to s 17 of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment (Charge 1), and one charge of conduct endangering persons contrary to s 23 of the Crimes Act 1958, which carries a maximum penalty of five years imprisonment (Charge 2).
[1] A pseudonym
2You have also pleaded guilty to the related summary offence of contravene a family violence interim intervention order contrary to s 123(2) of the Family Violence Protection Act2008, which carries a maximum penalty of two years imprisonment and/or 240 penalty units.
3You have no prior Criminal Record.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5At the time of the offending you were 30 years of age and in a relationship with Sophie Gayle[2], the victim in this matter.
[2] A pseudonym.
6On 14 February 2020, you and the victim moved into Room 2 of a boarding house in Lilydale. The boarding house contained individual rooms and shared bathroom facilities. Room 2 is comprised of a single open room with a small kitchenette and one bed.
7On 27 May 2020, you got out of bed at around 8.30am and began drinking alcohol. Approximately two hours later you and the victim began drinking alcohol together.
8At about midnight you and the victim had a verbal argument in relation to being unable to locate cannabis belonging to both of you. You believed that the victim had hidden the cannabis and you became aggressive.
9Another resident, Michael White, heard you and the victim yelling and knocked on the door of your room. Mr White questioned you, resulting in a physical altercation between the two of you in the hallway, requiring the victim to intervene. You and the victim returned to your room and the argument between you continued.
10As the victim was sitting in front of a window, you grabbed her by the front of her hair. The force that you used caused the victim's head to impact the window. You then threw the victim to the floor and repeatedly punched her to the face. The victim described the blows inflicted by you as being once to the left side of the head and multiple times to the right side of the face. The injury to the victim's face will be discussed further below; however, it is these facts that relate to Charge 1, recklessly causing serious injury.
11You then held the victim down by straddling over her, placing both your hands around her neck and strangled her. The victim felt like she was, 'turning purple' and that she was being strangled for about half a minute. It is these facts that relate to Charge 2, conduct endangering persons.
12You got off the victim and she left the room, at which point you locked her out. The victim waited outside the room for a short time before you let her back inside.
13Upon hearing thumps coming from Room 2, another co-resident, Ross Ponton, contacted 000. Police arrived at the address at approximately 12.45am and you were arrested.
Injuries to the victim
14The victim was conveyed to Maroondah Hospital by ambulance. She suffered the following injuries as a result of your assaults:
· tenderness to the spine upon palpitation;
· swelling and bruising to the left jaw;
· a 3 centimetre laceration to the right eye and periorbital haematoma;
· tinnitus to the left ear;
· an acute fracture of the medial wall of right orbit;
· partial herniation of the right medial rectus;
· acute mildly displaced fractures of nasal bones and septum; and
· blurred vision in both eyes.
15It is the acute fracture of the medial wall of right orbit which gives rise to Charge 1, recklessly causing serious injury. The assessment and prognosis of that injury is as follows:
16The victim was assessed by Dr Gunathilaka on 3 June 2020. At this time, the victim reported that she was experiencing some visual blurriness, spots in her vision and double vision, limited to the right eye.
17In a report dated 17 September 2020, Dr Sungaila opined that the injury to the victim's eye 'has been substantial and complete healing is likely to take several months excluding complications'.
18The victim was reviewed by the oral maxillofacial team at Monash Health on 7 January 2021. A report found that, inter alia:
· the victim has ongoing exophthalmos (protruding eye) on the right side; and
· the injury (fracture of the right medial orbital wall) is permanent but recoverable with surgery.
19In a report dated 27 January 2021 from ophthalmologist Dr Daniel McKay, it was found:
· that the imaging showed features in keeping with a right medial orbital wall fracture which is likely to remain visible permanently on imaging; and
· that the victim has some double vision but that this is not affecting her significantly in her daily life and her symptoms are slowly improving.
20Dr McKay recommended a further review in 12 months with no surgery indicated for the orbital wall fracture.
21Dr Sungaila provided an updated statement on 1 February 2021, after receiving the report from the oral maxillofacial team at Monash Health dated 7 January 2021. Dr Sungaila opined that, 'it is highly probable that several more months will elapse before full recovery has occurred'.
22You were deemed unfit for interview on 28 May 2020 and transferred to the Angliss Hospital in Ferntree Gully for alcohol withdrawal. You were interviewed by police on 2 June 2020 after being discharged from hospital and provided a no comment record of interview. You were remanded in custody and have been in custody ever since.
23On 5 June 2020, a family violence intervention order was made at the Ringwood Magistrates' Court in favour of the victim, with you as the respondent.
24A condition of that order prevented you from contacting the victim by any means. On 19 June 2020 you wrote a letter to the victim's father from custody to advise of your location with details as to how the victim or her father could get in touch with you. It is these facts that relate to Summary Charge 5, contravention of a family violence intervention order.
Nature and gravity of the offending
25Recklessly causing serious injury is by its nature a serious offence which is reflected in the maximum penalty of 15 years imprisonment.
26At the plea hearing, your counsel did not take issue with the description of your conduct as a 'frenzied attack'. The argument you were having with your partner at the time was over something relatively trivial; however, in the context of being significantly affected by alcohol, you snapped and violently attacked her. While no victim impact statement was tendered, it is clear from the summary of the offending that the nature of your attack would have been a frightening experience for the victim. Having been forced to the floor after grabbing her by the hair, the victim was then repeatedly punched by you causing the serious injury. However, once that had occurred, you placed your hands around her neck restricting her air, which the victim describes as feeling like she was 'turning purple'. This would also have been a harrowing experience having already been punched to the face and injured by you in the moments before.
27Mr Terry, who appeared on your behalf, accepted that the offence is inherently serious; however, he submitted that the particular serious injury that constitutes the charge falls towards the lower end of the spectrum. Indeed, the impediment to this matter resolving at an earlier stage was an argument as to whether the injury satisfied the definition of serious injury in the Crimes Act. These matters were canvassed in a case conference before me on 23 March 2021.
28While the medical opinion suggests that in time the injury to the eye may resolve, the expert medical opinion is that it is likely to take several months to heal. At the time of review by the Monash oral maxillofacial report in January this year, the victim had ongoing exophthalmos or protruding eye. The medical opinion suggests that the injury may ultimately resolve and as such it was submitted that the serious injury suffered falls towards the lower end of the spectrum of serious injury. However, the way in which the injury was inflicted must also be taken into account. As noted, this was a frenzied attack on a woman in her home by a partner she trusted, and as such, in my view, in all the circumstances your moral culpability remains high.
29As to the breach of the intervention order, while you were well aware that you were not to contact the victim following the assault you made contact with her through her father. You did not, however, physically approach the victim and your intention in writing the letter was to express your remorse and apologise to her. In the circumstances in my view, while it is always serious to breach an intervention order, this is a lower level breach.
Personal circumstances
30You are 31 years of age and were 30 at the time of the offending.
31Your family fled the civil war in El Salvador and came to Australia as refugees in 1988. You were born in Australia and are an Australian citizen. You are the youngest of three siblings.
32Your parents separated when you were very young and you experienced a dysfunctional home environment, being harshly disciplined and physically assaulted. After your parents separated you lived with your mother and her new partner, with whom you did not have a good relationship. At the age of 13 you lived with your father for a period of time before moving into shared accommodation. Your father had an issue with alcohol and you yourself began to drink alcohol at around this age. You moved out of the family home at age 20.
33You completed secondary school to Year 10, however you were disengaged academically and moved around to a number of different schools. Following school, you obtained qualifications in automotive mechanics at Box Hill TAFE.
34You commenced an apprenticeship as a mechanic at age 16. You then worked as a mechanic for a number of employers. Your work history is consistent, and you gained senior roles such as workshop foreman and lead technician at Volkswagen. In November 2019 you lost your job, which triggered an exacerbation in your underlying issue with alcohol to the point where you were drinking up to four litres of wine a day. You were also regularly using cannabis.
35In December 2019 you sought treatment for your mental health issues. Your general practitioner diagnosed you with depression and you started taking antidepressants. You had been placed on a mental health care plan, but this offending occurred at this unstable point in your life prior to any referrals being made. You have continued taking antidepressants in custody.
36In terms of your physical health, you have nerve damage in your wrist which prevents you from working in custody and you have put on a significant amount of weight since being remanded.
37Two reports were prepared by David Ball, forensic psychologist, and tended on the plea. The first is dated 27 July 2020 and was prepared in anticipation of a bail application. The second is dated 12 April 2021 and was prepared for the plea hearing. I have taken both reports into account. In the second report, Mr Ball confirms that you satisfy the criteria for severe cannabis and alcohol use disorders and the diagnostic criteria for persistent depressive disorder. However, it is not contended that any Verdins principles are identified in the reports.
38A reference was prepared by your older brother, Andrew Parsons[3], and tendered. Mr Parsons lives with his wife and two children and works as a finance manager. Mr Parsons states that since you have been in custody, you have rekindled your relationship with him, and he has maintained weekly contact with you. He notes that you have expressed remorse for your conduct and that you are determined to get your life back on track. He and his wife have offered you accommodation on your release and will offer you supervision and support.
[3] A pseudonym.
Sentencing considerations
39I take into account your plea of guilty. The matter proceeded by way of contested committal hearing; however, as the focus was on the nature of the injury, only the medical experts and the informant were cross examined. The matter resolved after a case conference before me in March this year where, by your plea, you have accepted that the injury satisfies the definition of serious injury.
40In the circumstances I accept that, whilst it is not an early plea, your plea can be taken into account in your favour as it has spared the victim from having to relive the trauma of the incident and it has avoided the time and expense of a jury trial. Further, your plea in the context of the significant delays caused by the pandemic has also facilitated the course of justice by bringing the matter to a conclusion.
41Mr Terry submits that you have expressed genuine remorse over and above your plea of guilty in the letter you wrote to the victim. In the letter you state to the victim that you are sorry to have put her through the ordeal and that you 'deserve everything I get and will never forgive myself'. While the sending of the letter constitutes the conduct that gives rise to the summary charge, I accept that your sentiments are genuine and that you have expressed a degree of genuine remorse for your conduct.
42You have no prior criminal record and Mr Terry submitted that, despite one previous incident when you admit to pushing the victim on another occasion, in the five-year relationship there have been no other incidents of violence. You have the support of your brother and his family and you have an excellent work history. As such, while you may face some difficulties in dealing with your alcohol problem in the future, in all the circumstances in my view your prospects of rehabilitation are strong. For the same reasons, specific deterrence, while still relevant, need not carry significant weight in the sentencing discretion.
43Mr Malik, who appeared on behalf of the Director of Public Prosecutions, submitted that because of the nature of the offending, being in the context of domestic violence, general deterrence and denunciation are prominent sentencing considerations, which is undoubtedly correct. Although you have no prior convictions, your offending occurred in the context of a relationship where your violent attack on your partner stemmed from a dispute over something relatively trivial. A message must be conveyed that such conduct will not be tolerated, and perpetrators of such violence will inevitably face imprisonment.
44Mr Terry submitted that the time you have spent on remand is sufficient and could serve as the gaol component of a combination sentence pursuant to s 44 of the Sentencing Act 1991. Mr Malik submitted that the seriousness of your conduct falls outside the range of a combination sentence. I accept that submission; however, given your lack of prior history and your positive prospects of rehabilitation, in my view you would benefit from a longer than usual parole period.
Sentence
45Mr Parsons, please stand.
46Charlie Parsons, on Charge 1, causing serious injury recklessly, you are convicted and sentenced to 2 years and 3 months imprisonment. On Charge 2, reckless conduct endangering serious injury, you are convicted and sentenced to 9 months imprisonment. I direct that 3 months of the sentence on Charge 2 be cumulative on the sentence imposed on Charge 1 making for a total effective sentence of 2 years and 6 months imprisonment. I direct that you serve 15 months before becoming eligible for parole.
47On summary Charge 5, contravening a family violence intervention order, you are convicted and fined $600.
48Pursuant to s 18 of the Sentencing Act1991, I declare that 356 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
49Pursuant to s 6AAA of the Sentencing Act1991, if not for your pleas of guilty I would have sentenced you to 3 years imprisonment, with a non-parole period of 2 years.
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